Post by Gary Holder-Winfield on Jul 4, 2005 7:51:30 GMT -5
I am still waiting to hear from someone how acting in a manner that runs counter to the ideals the flag represents (limiting expression) preserves those ideals. You can not simply limit expression because you do not like it and still call it American (those actions.)
And alarming proposal in Congress
Date: Monday, July 04 @ 00:00:30
Topic Opinion
Editor's note: This Daily Herald editorial first appeared April 13, 2003, after Sen. Orrin Hatch proposed a Constitutional amendment that would allow states to outlaw political protests that employ a flag. Last month, the U.S. House of Representatives, with the support of Utah Reps.
Chris Cannon and Rob Bishop, passed a similar measure, which now heads for Senate debate.
Utah Sen. Orrin G. Hatch wants to outlaw disrespectful acts toward the American flag -- acts that are understandably offensive to many.
But so far he has been blocked by Supreme Court rulings that flag desecration constitutes political speech protected by the First Amendment and that laws aimed at stopping it are therefore unconstitutional.
Unhappy with those rulings, Sen. Hatch has adopted a more radical approach:
He wants to modify the Bill of Rights.
Only four times in history has a Supreme Court ruling given rise to a constitutional amendment. But never before has any amendment directly altered one of the first 10 amendments, which deal with individual liberties and are held in special reverence by Americans. The Bill of Rights has long been viewed as a bulwark against the tides of popular politics.
If Sen. Hatch's amendment is enacted, that will change. His proposal takes a significant chunk out of the First Amendment, arguably the most important of the Bill of Rights:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."
Abridging freedom of speech is precisely what Sen. Hatch intends to do.
Having been rejected by the courts, he and other proponents of flag-desecration laws, including the American Legion and the Citizens Flag Alliance, want a trump card that once and for all (as they suppose) would allow for the suppression of this especially potent form of political commentary, placing it beyond the reach of the courts.
Surveys show that many Americans agree with Sen. Hatch -- casually at least -- that physical destruction of the flag should be illegal. This is precisely the right time, during a military conflict in which patriotic feelings are running high, to slow down and reflect a moment on American values and the rights for which we stand. Popular sentiment can have a tendency to override wisdom.
After the Constitutional Convention of 1787, Benjamin Franklin was asked what kind of government the country now had. He replied, "A republic, if you can keep it." His words stand as a warning as relevant today as when he uttered them, for "keeping it" requires that ordinary citizens know the difference between fundamental issues and those political "feel good" acts that are often pushed by politicians.
When it comes to the question of flag desecration -- or more specifically, whether such acts should be punished as crimes -- it is not clear whether Americans will exercise wisdom and restraint, or take a hasty step that will erode a cornerstone of their liberties.
No simple matter
Sen. Hatch's proposed amendment does not itself make flag desecration a crime, but it is designed to encourage state and federal laws that will. Its language is direct: "Congress shall have the power to prohibit the physical desecration of the flag of the United States. "The meaning is quite simple, Sen. Hatch says, and it won't affect anyone's freedom of speech.
But the issue is anything but simple, and it will require Americans to pay careful attention to all its implications. The proposed amendment operates at two levels, both of them troubling. First is what the amendment itself would do to the Constitution, in particular to the operations of the First Amendment and the principle of judicial review. The second is the creation and adjudication of bad laws that it most certainly invites.
Let us be clear: No decent person who loves this country, no veteran who has fought to preserve it, no public officer who works to improve it, can enjoy seeing a flag used as a vulgar billboard to rail against government actions or policies. Those who would physically abuse a flag, a symbol dear to the hearts of so many Americans, exhibit at the very least a crass insensitivity and carelessness toward very real sacrifices that have been made on their behalf.
Even so, insensitivity and ingratitude, while deserving of contempt, are not crimes. And Sen. Hatch's proposal is more troubling than the sight of any protester setting fire to a flag. His amendment would set fire to things more precious: the idea that government should not enforce official orthodoxy in matters of conscience, and that it should not stifle dissent.
Gerald Gunther, a leading constitutional scholar, put it this way: "The lesson I have drawn from my childhood in Nazi Germany and my happier adult life in this country is the need to walk the sometimes difficult path of denouncing the bigot's hateful ideas with all my power, yet at the same time challenging any community's attempt to suppress hateful ideas by force of law."
Bypassing the courts
Sen. Hatch's proposed amendment would allow Congress to make laws abridging the freedom of speech, which is troubling enough. But it would also weaken the ability of the courts to review flag-desecration laws. Sen. Hatch takes the startling position that where the flag is concerned judicial review should be limited, if not scrapped, and legislation enacted by Congress or the states should not be subject to what he suggests is an illegitimate power -- the courts' long-recognized right to reject unconstitutional laws.
This is not to say that Sen. Hatch is somehow being unfaithful to the process prescribed by the Constitution for its own amendment. Congress has the right, indeed the duty, to propose amendments that will inure to the benefit of the nation.
But this particular amendment works in the opposite direction. It would spawn all manner of laws negating the fundamental right to use a flag in political protest, and it would interfere with the courts' ability to offer redress to anyone affected by those laws. Because Sen. Hatch's amendment would supersede the free-speech clause of the First Amendment in cases of flag desecration, claims against questionable state or federal flag laws would be rendered moot.
To what principles would an aggrieved person appeal? Certainly no longer to the idea that "Congress shall make no law," for the abridgement of free speech the First Amendment expressly prohibits would now be expressly allowed under Sen. Hatch's proposal.
To impose such a contradiction upon the courts, and thus upon the American people, is unwise in the extreme. It steers into dangerous and uncharted waters.
If ever a concept may be said to create a slippery slope, this one qualifies. If judicial review can be side-stepped in cases of flag desecration, a thoughtful American might wonder what could come next.
Sen. Hatch renews a two-centuries-old debate when he presses the general supremacy of Congress over the courts, rather than a balance of power. He bemoans what he calls "a reallocation of power from Congress to the Supreme Court"; he speaks of returning the "power of governance" to the American people (by which he means skipping the courts); he decries the "handful of senators" who have resisted his populist call-to-arms over flag desecration.
In truth, that handful of senators, whose principles have governed their passions, deserve our thanks. It is they alone who have prevented a constitutional debacle as Sen. Hatch has pushed his flag-desecration amendment several times in the past.
One should ask whether amending the Constitution is appropriate for dealing with a matter as trivial in the scope of national life as flag protests. The answer is eloquently supplied by Thomas Jefferson in the Declaration of Independence: "Prudence dictates that governments long established should not be changed for light and transient causes," he wrote.
He was referring to revolution, but the principle applies as much here. Amending the Bill of Rights should never be undertaken except for the most serious of causes affecting liberty and justice, never for a purpose as dubious as muzzling unpopular opinions.
And flag desecration is truly a light and transient cause. In the Citizens Flag Alliance's own list of 111 so-called acts of flag desecration since 1989, only 42 -- three per year -- clearly involved political protest. The others could be tried under theft, vandalism and arson statutes.
Practical questions
But the potential damage to the First Amendment and judicial review is just the beginning. As a practical matter, Sen. Hatch's flag amendment will encourage a minefield of bad new laws across the nation. And it is not at all clear how utter confusion can be avoided. Here are a few questions to consider:
What, exactly, is a flag? And what images will be subject to desecration laws? Old Glory appears on everything from T-shirts to bumper stickers and bathing suits. It is printed on paper, embossed in metal and frosted on sheet cakes. Could the destruction of any of these things become a criminal act?
What does it mean to "desecrate" a flag, as opposed to vandalizing it? Sen. Hatch's invocation of religious imagery and sacredness moves government in a direction long felt by Americans to be inappropriate, toward official rules regarding what one may hold dear. He says the flag represents "the core ideals all Americans share." But is there only one, monolithic set of ideals? Does the flag represent only certain "good" things? Individual answers may vary widely. Who does Sen. Hatch suggest should dictate the flag's precise meanings?
How might laws against flag desecration affect principles of private property? One's flag does not belong to the government any more than do other personal linens. Americans blithely call it "our" flag, but in truth it is not communally owned. Flag-manufacturing is strictly a private industry, and the treatment or use of a flag which one has lawfully purchased is a private matter.
Traditional ceremonies for disposing of old flags involve burning them. Is it too far-fetched to wonder whether Sen. Hatch's amendment might lead to future legislative prescriptions differentiating ceremonies from crimes? Boy Scouts beware.
Does the destruction of any symbol equate to the destruction of the thing symbolized? Clearly not. The ideals of America will remain alive in the hearts and minds of individuals even if every flag ever made were destroyed tomorrow. So what real benefit is achieved by flag-desecration laws?
Speech vs. acts
Central to Sen. Hatch's argument is a misconception held by many that the First Amendment protects only speech per se -- that is, verbal expressions of protest. The rationale is that because flag burning is an act and not speech, it does not qualify for protection.
This is easily answered. The essential characteristic of speech is the conveyance of a message, not the mode by which it is conveyed. And powerful messages are embedded in acts of protest involving flags.
To argue that symbolic messages are not covered by the First Amendment is to invalidate language itself, since words are nothing but symbols of meaning, and speaking them is an act. (We dare not ask what Sen. Hatch's concept of speech might mean for those without hearing who use American Sign Language.)
Fortunately for free speech, the Supreme Court has not suffered the peculiar intellectual disconnect that leads Sen. Hatch and others to distinguish between expressive words and expressive acts. The court correctly recognizes flag protest not as speech per se but as what may be called speech per quod -- which is to say, it amounts to speech -- and properly subjects it to free-speech analysis under the First Amendment.
The same logic that would validate one's act of waving a flag enthusiastically in a parade to convey a patriotic message also validates the protester's burning of a flag to express objections to American politics or policy.
The only difference is that in the first example, Sen. Hatch approves of the message and thus supports the act. In the second he rejects the message and would make the act a crime.
The bottom line now becomes clear: Notwithstanding all the fine words about core American ideals, sacred symbols and the like, the primary effect of Sen. Hatch's amendment is the suppression of dissent.
Worth the price?
Beth Fratkin of Park City objects to the Iraq war. She recently exercised her right to dissent by hanging a flag emblazoned with a peace sign from her front door. She was visited by local police, who warned she was in violation of Utah's flag-desecration law. The city prosecutor, recognizing that the Supreme Court had voided the law, took no action against her.
But with Sen. Hatch's amendment in place the full weight of the legal system would be brought to bear. Free speech, the lifeblood of liberty, would be taken down along with Fratkin's flag.
Fratkin's simple message did not intimidate. It posed no true threat to anyone. It did not incite a breach of the peace. She was merely making a political statement by using her own flag.
Is her protest so abhorrent that it justifies eroding the First Amendment? Is it so intolerable that judicial review should be hobbled? Is it so dangerous that it requires suppression?
Americans should think carefully. Their decision will surely come home to roost.
While Sen. Hatch's proposal may have been made in good faith, it has deep flaws -- which may not stop Congress from passing it anyway and launching the amendment process this year. And the outcome is too close to call. With a slim three- or four-vote margin in the Senate, it may be truly said today that the Constitution hangs by a thread.
This story appeared in The Daily Herald on page A5.
And alarming proposal in Congress
Date: Monday, July 04 @ 00:00:30
Topic Opinion
Editor's note: This Daily Herald editorial first appeared April 13, 2003, after Sen. Orrin Hatch proposed a Constitutional amendment that would allow states to outlaw political protests that employ a flag. Last month, the U.S. House of Representatives, with the support of Utah Reps.
Chris Cannon and Rob Bishop, passed a similar measure, which now heads for Senate debate.
Utah Sen. Orrin G. Hatch wants to outlaw disrespectful acts toward the American flag -- acts that are understandably offensive to many.
But so far he has been blocked by Supreme Court rulings that flag desecration constitutes political speech protected by the First Amendment and that laws aimed at stopping it are therefore unconstitutional.
Unhappy with those rulings, Sen. Hatch has adopted a more radical approach:
He wants to modify the Bill of Rights.
Only four times in history has a Supreme Court ruling given rise to a constitutional amendment. But never before has any amendment directly altered one of the first 10 amendments, which deal with individual liberties and are held in special reverence by Americans. The Bill of Rights has long been viewed as a bulwark against the tides of popular politics.
If Sen. Hatch's amendment is enacted, that will change. His proposal takes a significant chunk out of the First Amendment, arguably the most important of the Bill of Rights:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."
Abridging freedom of speech is precisely what Sen. Hatch intends to do.
Having been rejected by the courts, he and other proponents of flag-desecration laws, including the American Legion and the Citizens Flag Alliance, want a trump card that once and for all (as they suppose) would allow for the suppression of this especially potent form of political commentary, placing it beyond the reach of the courts.
Surveys show that many Americans agree with Sen. Hatch -- casually at least -- that physical destruction of the flag should be illegal. This is precisely the right time, during a military conflict in which patriotic feelings are running high, to slow down and reflect a moment on American values and the rights for which we stand. Popular sentiment can have a tendency to override wisdom.
After the Constitutional Convention of 1787, Benjamin Franklin was asked what kind of government the country now had. He replied, "A republic, if you can keep it." His words stand as a warning as relevant today as when he uttered them, for "keeping it" requires that ordinary citizens know the difference between fundamental issues and those political "feel good" acts that are often pushed by politicians.
When it comes to the question of flag desecration -- or more specifically, whether such acts should be punished as crimes -- it is not clear whether Americans will exercise wisdom and restraint, or take a hasty step that will erode a cornerstone of their liberties.
No simple matter
Sen. Hatch's proposed amendment does not itself make flag desecration a crime, but it is designed to encourage state and federal laws that will. Its language is direct: "Congress shall have the power to prohibit the physical desecration of the flag of the United States. "The meaning is quite simple, Sen. Hatch says, and it won't affect anyone's freedom of speech.
But the issue is anything but simple, and it will require Americans to pay careful attention to all its implications. The proposed amendment operates at two levels, both of them troubling. First is what the amendment itself would do to the Constitution, in particular to the operations of the First Amendment and the principle of judicial review. The second is the creation and adjudication of bad laws that it most certainly invites.
Let us be clear: No decent person who loves this country, no veteran who has fought to preserve it, no public officer who works to improve it, can enjoy seeing a flag used as a vulgar billboard to rail against government actions or policies. Those who would physically abuse a flag, a symbol dear to the hearts of so many Americans, exhibit at the very least a crass insensitivity and carelessness toward very real sacrifices that have been made on their behalf.
Even so, insensitivity and ingratitude, while deserving of contempt, are not crimes. And Sen. Hatch's proposal is more troubling than the sight of any protester setting fire to a flag. His amendment would set fire to things more precious: the idea that government should not enforce official orthodoxy in matters of conscience, and that it should not stifle dissent.
Gerald Gunther, a leading constitutional scholar, put it this way: "The lesson I have drawn from my childhood in Nazi Germany and my happier adult life in this country is the need to walk the sometimes difficult path of denouncing the bigot's hateful ideas with all my power, yet at the same time challenging any community's attempt to suppress hateful ideas by force of law."
Bypassing the courts
Sen. Hatch's proposed amendment would allow Congress to make laws abridging the freedom of speech, which is troubling enough. But it would also weaken the ability of the courts to review flag-desecration laws. Sen. Hatch takes the startling position that where the flag is concerned judicial review should be limited, if not scrapped, and legislation enacted by Congress or the states should not be subject to what he suggests is an illegitimate power -- the courts' long-recognized right to reject unconstitutional laws.
This is not to say that Sen. Hatch is somehow being unfaithful to the process prescribed by the Constitution for its own amendment. Congress has the right, indeed the duty, to propose amendments that will inure to the benefit of the nation.
But this particular amendment works in the opposite direction. It would spawn all manner of laws negating the fundamental right to use a flag in political protest, and it would interfere with the courts' ability to offer redress to anyone affected by those laws. Because Sen. Hatch's amendment would supersede the free-speech clause of the First Amendment in cases of flag desecration, claims against questionable state or federal flag laws would be rendered moot.
To what principles would an aggrieved person appeal? Certainly no longer to the idea that "Congress shall make no law," for the abridgement of free speech the First Amendment expressly prohibits would now be expressly allowed under Sen. Hatch's proposal.
To impose such a contradiction upon the courts, and thus upon the American people, is unwise in the extreme. It steers into dangerous and uncharted waters.
If ever a concept may be said to create a slippery slope, this one qualifies. If judicial review can be side-stepped in cases of flag desecration, a thoughtful American might wonder what could come next.
Sen. Hatch renews a two-centuries-old debate when he presses the general supremacy of Congress over the courts, rather than a balance of power. He bemoans what he calls "a reallocation of power from Congress to the Supreme Court"; he speaks of returning the "power of governance" to the American people (by which he means skipping the courts); he decries the "handful of senators" who have resisted his populist call-to-arms over flag desecration.
In truth, that handful of senators, whose principles have governed their passions, deserve our thanks. It is they alone who have prevented a constitutional debacle as Sen. Hatch has pushed his flag-desecration amendment several times in the past.
One should ask whether amending the Constitution is appropriate for dealing with a matter as trivial in the scope of national life as flag protests. The answer is eloquently supplied by Thomas Jefferson in the Declaration of Independence: "Prudence dictates that governments long established should not be changed for light and transient causes," he wrote.
He was referring to revolution, but the principle applies as much here. Amending the Bill of Rights should never be undertaken except for the most serious of causes affecting liberty and justice, never for a purpose as dubious as muzzling unpopular opinions.
And flag desecration is truly a light and transient cause. In the Citizens Flag Alliance's own list of 111 so-called acts of flag desecration since 1989, only 42 -- three per year -- clearly involved political protest. The others could be tried under theft, vandalism and arson statutes.
Practical questions
But the potential damage to the First Amendment and judicial review is just the beginning. As a practical matter, Sen. Hatch's flag amendment will encourage a minefield of bad new laws across the nation. And it is not at all clear how utter confusion can be avoided. Here are a few questions to consider:
What, exactly, is a flag? And what images will be subject to desecration laws? Old Glory appears on everything from T-shirts to bumper stickers and bathing suits. It is printed on paper, embossed in metal and frosted on sheet cakes. Could the destruction of any of these things become a criminal act?
What does it mean to "desecrate" a flag, as opposed to vandalizing it? Sen. Hatch's invocation of religious imagery and sacredness moves government in a direction long felt by Americans to be inappropriate, toward official rules regarding what one may hold dear. He says the flag represents "the core ideals all Americans share." But is there only one, monolithic set of ideals? Does the flag represent only certain "good" things? Individual answers may vary widely. Who does Sen. Hatch suggest should dictate the flag's precise meanings?
How might laws against flag desecration affect principles of private property? One's flag does not belong to the government any more than do other personal linens. Americans blithely call it "our" flag, but in truth it is not communally owned. Flag-manufacturing is strictly a private industry, and the treatment or use of a flag which one has lawfully purchased is a private matter.
Traditional ceremonies for disposing of old flags involve burning them. Is it too far-fetched to wonder whether Sen. Hatch's amendment might lead to future legislative prescriptions differentiating ceremonies from crimes? Boy Scouts beware.
Does the destruction of any symbol equate to the destruction of the thing symbolized? Clearly not. The ideals of America will remain alive in the hearts and minds of individuals even if every flag ever made were destroyed tomorrow. So what real benefit is achieved by flag-desecration laws?
Speech vs. acts
Central to Sen. Hatch's argument is a misconception held by many that the First Amendment protects only speech per se -- that is, verbal expressions of protest. The rationale is that because flag burning is an act and not speech, it does not qualify for protection.
This is easily answered. The essential characteristic of speech is the conveyance of a message, not the mode by which it is conveyed. And powerful messages are embedded in acts of protest involving flags.
To argue that symbolic messages are not covered by the First Amendment is to invalidate language itself, since words are nothing but symbols of meaning, and speaking them is an act. (We dare not ask what Sen. Hatch's concept of speech might mean for those without hearing who use American Sign Language.)
Fortunately for free speech, the Supreme Court has not suffered the peculiar intellectual disconnect that leads Sen. Hatch and others to distinguish between expressive words and expressive acts. The court correctly recognizes flag protest not as speech per se but as what may be called speech per quod -- which is to say, it amounts to speech -- and properly subjects it to free-speech analysis under the First Amendment.
The same logic that would validate one's act of waving a flag enthusiastically in a parade to convey a patriotic message also validates the protester's burning of a flag to express objections to American politics or policy.
The only difference is that in the first example, Sen. Hatch approves of the message and thus supports the act. In the second he rejects the message and would make the act a crime.
The bottom line now becomes clear: Notwithstanding all the fine words about core American ideals, sacred symbols and the like, the primary effect of Sen. Hatch's amendment is the suppression of dissent.
Worth the price?
Beth Fratkin of Park City objects to the Iraq war. She recently exercised her right to dissent by hanging a flag emblazoned with a peace sign from her front door. She was visited by local police, who warned she was in violation of Utah's flag-desecration law. The city prosecutor, recognizing that the Supreme Court had voided the law, took no action against her.
But with Sen. Hatch's amendment in place the full weight of the legal system would be brought to bear. Free speech, the lifeblood of liberty, would be taken down along with Fratkin's flag.
Fratkin's simple message did not intimidate. It posed no true threat to anyone. It did not incite a breach of the peace. She was merely making a political statement by using her own flag.
Is her protest so abhorrent that it justifies eroding the First Amendment? Is it so intolerable that judicial review should be hobbled? Is it so dangerous that it requires suppression?
Americans should think carefully. Their decision will surely come home to roost.
While Sen. Hatch's proposal may have been made in good faith, it has deep flaws -- which may not stop Congress from passing it anyway and launching the amendment process this year. And the outcome is too close to call. With a slim three- or four-vote margin in the Senate, it may be truly said today that the Constitution hangs by a thread.
This story appeared in The Daily Herald on page A5.